Molloy v. New York City Police Department

50 A.D.3d 98, 851 N.Y.S.2d 480

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2008
• Status: Published

Opinions

OPINION OF THE COURT

Buckley, J.

Petitioner was convicted in 1999 of manslaughter in the second degree and sentenced to a prison term of 4 to 12 years for the shooting death of Patrick Phelan (see People v Molloy, 282 AD2d 311 [2001], lv denied 96 NY2d 922 [2001]). The defense theory at trial was that Phelan, an intoxicated, diminutive house painter, furtively removed the service revolver from the holster of the much larger petitioner, then an off-duty police officer, and committed suicide (see People v Molloy, 235 AD2d 48 [1997]).

Following his conviction, petitioner made a request pursuant to the Freedom of Information Law (FOIL) for documents relating to specified investigations by the New York City Police Department (NYPD) Internal Affairs Bureau (IAB) which purportedly would show a previous attempt by Phelan to take a pistol from another officer, as well as prior suicide attempts while in prison in Northern Ireland for activities pertaining to the IRA. The NYPD denied the request on the grounds that “the information would reveal non-routine investigative techniques” and “would identify a confidential source/ confidential information.”

Petitioner filed an administrative appeal, arguing that the requested documents were generated by routine investigative methods and did not implicate any confidential sources or information. The NYPD failed to respond to the administrative appeal within 10 days, although required to do so by Public Officers Law § 89 (4) (a), and petitioner commenced this CPLR article 78 proceeding. Thereafter, the NYPD issued a response to the administrative appeal, claiming, inter alia, that disclosure of the sought information was barred by Civil Rights Law § 50-a (1), pursuant to which personnel records of a police officer “used to evaluate performance toward continued employment or promotion” are “considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order.” The NYPD then cross-moved to dismiss the article 78 petition on that basis, which the court granted.

In relying on the NYPD’s submissions tendered after the expiration of the 10-day administrative appeal response period, and after the commencement of the article 78 proceeding, Supreme Court improperly considered evidence outside the administrative record (see Matter of HLV Assoc. v Aponte, 223 AD2d 362 [1996]). The appropriate remedy under the circumstances is to remand to the Police Department (see Matter of Rhino Assets, LLC v New York City Dept. for the Aging, SCRIE Programs, 31 AD3d 292 [2006]), rather than to direct respondents to produce the requested materials.

The documents petitioner seeks, LAB records pertaining to an investigation into the actions of a Police Department detective, would appear to implicate, on their face, personnel records of a police officer within the meaning of Civil Rights Law § 50-a (1). As noted supra, under that statute, personnel records of a police officer “used to evaluate performance toward continued employment or promotion” are “considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order.” Thus, “Civil Rights Law § 50-a unambiguously defines the records that are immune from indiscriminate disclosure” (Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 154 [1999] [emphasis added]). The confidentiality of the statute is designed to protect the police officer, not the Department (id. at 154-155), and therefore should not be deemed automatically waived by the inaction of the Department.

Moreover, where the breadth or good faith of the invocation of the statute is called into doubt, the court should make an in camera inspection of the requested documents (see Matter of City of Newark v Law Dept. of City of N.Y., 305 AD2d 28, 34 [2003]). Indeed, the relief sought in the petition specifically includes a request for an in camera inspection. Therefore, remanding will not merely permit the NYPD to “craft its responses in an attempt to fit within the exceptions [to FOIL disclosure],” since the court can undertake an in camera inspection of the documents if the agency should deny the FOIL request, in whole or in part.

Accordingly, the order of the Supreme Court, New York County (Marilyn Shafer, J.), entered on or about June 7, 2005, which granted respondents’ cross motion to dismiss the article 78 petition, should be reversed, on the law, without costs, the cross motion denied, and the matter remanded to the NYPD for further administrative proceedings consistent herewith.